G20 Task Force on Employment Meeting
)
G20 Anti-Corruption Working Group
Progress Report 2013
PART IV: COMPILATION OF G20 RESPONSES ON PROCUREMENT
INTRODUCTION
The 2013 questionnaire included an expanded range of questions on procurement. Following is a compilation of national responses to two of those questions (#45 and #46), including web-sites where provided, regarding:
a) on-line publication of i) procurement laws and policies,including the legislation defining the use of exceptions; ii) selection of evaluation criteria; and iii) awards of contracts and modifications of contracts; and
b) new initiatives promoting public procurement transparency and integrity that have been proposed or implemented since the last progress report.
ARGENTINA
On-line publishing of procurement laws and policies
New initiatives to promote public procurement transparency and integrity
By Decree No. 893/2012, the Executive dictated the regulation of the Public Procurement Regime with the purposes to improve the efficient performance of the Administration and achieving the results required by society on transparency and the fight against corruption. This new regulation tends to strengthen and deepen the efficiency, effectiveness, economy, simplicity and ethics in managing public procurements. This new system will be complemented by the rules and principles issued by Decree No. 1023/2001, published on August 13th 2001.
The management system of public procurement must comply with the general principles of:
- Reasonableness of the project and procurement efficiency to meet the public interest involved and the expected outcome.
- Promoting stakeholder concurrence and competition between suppliers.
- Transparency in the procedures.
- Publicity and advertising of the proceedings.
- Responsibility of agents and officials who authorize, approve or manage procurements.
- Equal treatment for stakeholders and suppliers.
AUSTRALIA
On-line publishing of procurement laws and policies
Information on Australian Government public sector procurement can be found on the following website:This includes the Commonwealth Procurement Rules which provide the fundamental rule-set for Government procurement.
The Financial Management and Accountability Act 1997provide the legislative framework for the proper management of public money and public property by the Commonwealth. This legislation can be found at the following website:
Details of Australian Government tenders and contracts are available at the following website:
BRAZIL
On-line publishing of procurement laws and policies
Information on procurement by the federal public administration is made available through the federal procurement portal ( the Official Gazette of the Union ( the transparency pages of individual public organisations, the Transparency Portal of the Federal Public Administration (CANADA
On-line publishing of procurement laws and policies
Laws & Policies1)The Financial Administration Act (FAA) provides Treasury Board, a Ministerial Committee which serves as the Management Board of Government, with regulatory and policy authority regarding entry into contract [section 41(1)]and general administration [section 7(a)] respectively.
2)The Government Contracts Regulations have been enacted pursuant to Section 41(1) of the Financial Administration Act. Under the regulations, contracting authorities must solicit bids with four narrow exceptions. In 2011, the regulations were amended to deem terms, to be expressly stated in contracts, that increase administrative transparency, oversight and accountability.
3)Canada’s federal government procurements are subject to international and domestic trade agreements and Comprehensive Land Claim Agreements, all of which are legal obligations.
4)The Canadian International Trade Tribunal Act (section 30.11) provides the Canadian International Trade Tribunal with the authority to review bid challenges for contracts covered by the trade agreements and to establish regulations for procurement inquiry, which are known as the Canadian International Trade Tribunal Procurement Inquiry Regulations
5)The Department of Public Works and Government Services Act and the Procurement Ombudsman Regulations mandate the Office of the Procurement Ombudsman to improve fairness, openness and transparency in federal procurement. The Ombudsman has the authority to review the procurement practices of departments and to recommend improvements; to review complaints regarding transactions not covered by the trade agreements, which means the award of goods contracts below $25,000 and services below $100,000; to review complaints with respect to contract administration; and to ensure an alternative dispute resolution process is provided.
The Treasury Board Contracting Policy is the major policy instrument devoted exclusively to federal government procurement. It governs procurement for the departments and agencies of the Government of Canada and is issued pursuant to sections 7 and 41(1) of the Financial AdministrationAct. In addition to articulating the contracting policy per se, this procurement framework instrument alerts procurement practitioners to all other statutory or policy instruments which may affect procurement in whole or in part; for example, the Official Languages Act, the Competition Act and the Access to Information Act.
New initiatives to promote public procurement transparency and integrity
On July 11, 2012, Public Works and Government Services Canada (PWGSC – Canada’s major common services organization for procurement) updated its integrity provisions surrounding its procurement and real property transactions. The list of offences rendering companies and individuals ineligible to bid on PWGSC contracts was amended. The additional offences added to the list are:
Money laundering
Participation in activities of criminal organizations
Income tax/excise tax evasion
Bribing of a foreign public official
Offences in relation to drugs.
CHINA
There is a website – designated by the Ministry of Finance to publish the procurement laws and policies, public bidding information, successful tenders, awards and modification of contracts.
New initiatives to promote public procurement transparency and integrity
New requirement has been made to increase the transparency of public procurement. In the cases of procurement from sole sources due to their amounts exceeding public bidding criteria or any other circumstances, it is required to publish the procurement demands and reasons for resorting to sole sources prior to the procurement process, so as to subject those special procurement activities to public scrutiny.
FRANCE
On-line publishing of procurement laws and policies
New initiatives to promote public procurement transparency and integrity
The enactment of Statute No.2009-515 of May 7, 2009 concerning review procedures regarding public procurement contracts and of Regulation of November 2009 implementing this Statute, both transposing into domestic legislation the European Union Directive 2007/66/EC aiming to improve the effectiveness of review procedures as provided by Directives 89/665/EEC and 82/13/EEC organising coordination of national provisions of Member States relating to procedures for public procurement, greatly improved the effectiveness of the judicial review and the powers of the judge regarding failures to comply with the advertising and competitive tendering obligations.
The philosophy behind this modification is simple:
1. Improve the quality and transparency of information before the awarding of the contract, in order to enhance access to the judge. The main idea is to allow the unsuccessful bidders, through sufficient information, to examine whether or not it is justified to submit a judicial challenge.
2. Require compliance of a stand-still period between the decision to award the contract and the signature of the contract, allowing the bidders to submit a challenge on the stages where irregularities can be corrected
3. Provide effective and rapid ruling on the dispute.
There has been no new initiative since the latest progress report to further promote public procurement transparency.
GERMANY
On-line publishing of procurement laws and policies
Procurement laws and policies including the legislation defining the use of exceptions and the selection and evaluation criteria are published under andThe regions (Bundesländer) publish their procurement laws and policies for procurement underneath the thresholds in their own responsibility.
The awards of contracts above the EU-thresholds are published in
The awards of many contracts both above and under the thresholds are published in
INDONESIA
On-line publishing of procurement laws and policies
ITALY
On-line publishing of procurement laws and policies
According to Law n. 190/2012 contracting authorities shall publish on their web sites information on: the subject of the contract notice; the economic operators invited to tender; the successful contractor; the amount of the award; the time limit to complete the work, service or supply; the amount paid. Each year, by the end of 31 January, summary tables providing information, freely available in digital format, on the previous year are published in order to allow data assessment, also for statistical purposes. Contracting authorities shall transmit such information in digital format to the Authority for the Supervision of Public Contracts that shall publish it on its web site, in a section freely available to all citizens, listed by typology of contracting authority and Region. The Authority, by means of its own deliberation,identifies the relevant information and the transmission method. Moreover, each year by the end of 30 April, the Authority shall transmit to the Court of Auditors the list of administrations which have not provided and published, in whole or in part, the information in digital format. Accordingto art. 6, paragraph 11 of the Code of Public Contracts, if the information is not provided or false information has been provided, administrative sanctions can be inflicted by the Authority. The modifications of contracts are not published online; according to art. 6, par. 7 letter h.4 of the Legislative Decree 163/2006 (Code of Public Contracts), the Authority for the Supervision of Public Contracts in its annual report to the Parliament (also available online) makes an analysis on the modifications of contracts. The art. 37 of the recent Legislative Decree n.33/2013 provides for some public procurement publication duties according to the Legislative Decree n. 163/2006.
New initiatives to promote public procurement transparency and integrityThe Law n. 190/2012 provides also that public administrations shall publish on their websites information on budgets and final accounts, as well as on unit costs of construction of works and on costs of production of services provided to citizens; information on the costs is published on the basis of standard forms elaborated by the Authority for the Supervision of Public Contracts, that will ensure its collection and publication on its institutional website in order to allow easy comparison. According to part 1, paragraph 58, providing amendments of article 135 of the Code of Public Contracts, the contract can be annulled in the event of a conviction by final judgment of the contractor for crimes of corruption and bribery (crimes under art. 51 paragraphs 3-bis and 3-quater of the Criminal Code, articles 314, first paragraph, 316, 316-bis, 317, 318, 319, 319-b, 319-c and 320 of the Criminal Code), in relation to the status of the execution of the contract and possible consequences in respect to its aims. Furthermore, economic operators can be excluded from the procurement procedure for non-compliance with clauses of Memoranda on integrity or integrity pacts, in case it has been specified by the contracting authority in the notice, in the contract notice or in the letter of invitation (Art. 1, par. 17). According to the art.1, co. 27 of the Law n. 190/2012, some data and information that each public administration publishes on its institutional website (see art. 1.15 and art. 1.16 Law 190/2012) have to be sent in digital format to the Italian Anticorruption Authority (CiVIT).
JAPAN
On-line publishing of procurement laws and policies
People can access to procurement information of the each ministries and agencies via
websites of each of them.
For example (website is written in Japanese.)
Ministry of Finance (
Ministry of Foreign Affairs
(
New initiatives to promote public procurement transparency and integrity
The following revised articles of the Cabinet Order concerning the Budget, Auditing
and Accounting came into effect as from April 1, 2013.
-We revised Article 70 of the Cabinet Order concerning the Budget, Auditing and
Accounting, which added organized crime group members to the debarment list.
-We revised Article 71 of the Cabinet Order concerning the Budget, Auditing and
Accounting, which added the suppliers who overcharged the government and
associated agencies for their products to the debarment list.
MEXICO
On-line publishing of procurement laws and policies
New initiatives to promote public procurement transparency and integrity
Implemented: Federal Anti-Corruption Law in Public Procurement (Anti-Corruption Bill),, published in June 11, 2012
Proposed: Bill of Decree that amends different articles of the Federal Law of Administrative Responsibilities of Public Officials, presented to Congress on March 3rd 2011. This Bill is pending discussion and approval by the Chamber of Deputies.
RUSSIA
On-line publishing of procurement laws and policies
In accordance with the Federal Law N94 “On public procurement” the information on selection/evaluation criteria, contracts awarded as well as some other types of information are published on the specialized official web-portalNew initiatives to promote public procurement transparency and integrity
New draft legislation on public procurement is now under consideration by the Russian Parliament. A new Federal Law “On Federal Contract System” is meant to substitute for the aforementioned Federal Law N94. The new legislation includes a wide array of novels, including additional provisions aimed at enhancing transparency and preventing corruption (e.g. new bidding procedures, new types of information to be published online, etc.).
SAUDI ARABIA
On-line publishing of procurement laws and policies
The Saudi Government Tenders and Procurement Law issued by Royal Decree No. (M/58) dated 4/9/1427 H- 27/11/2006. The Law aims at :
1. regulating procedures of tenders and procurements carried out by government authorities and ensuring they are not influenced by personal interest in order to protect the public funds.
2. achieving maximum degree of economic efficiency in government
3. procurements and carrying out government projects at fair competitive prices.
4. promoting honesty and competition and ensuring fair treatment of suppliers and contractors in accordance with the principle of equal opportunities.
5. guaranteeing transparency in all stages of government tender and procurement procedures.
The Government Tenders and Procurements law and its implementing regulations determine selection and evaluation criteria, awards of contracts, and modification of contracts.
The Government Tenders and Procurements law and its implementing regulations include the following articles:
- Tenderers shall be provided with clear, complete and uniform information about the required work and shall be enabled to obtain such information at a specified time. Sufficient copies of the tender documents shall be provided to meet the requests of those interested in obtaining them.
- All government works and procurements shall be put up for public tender.
- Bids may only be accepted and contracted on in accordance with the conditions and specifications stipulated for them.
- Total prices and any increase or decrease thereon shall be specified in the letter of the original bid. Any decrease submitted in a separate letter shall not be considered even if accompanying the bid.
- Sealed-bids shall be opened in the presence of all members of the Sealed-bids Opening Committee on the specified date, and bid prices shall be announced to tenderers present or their representatives.
- If only one bid is submitted or several bids are submitted but found– except for one– not to conform with the terms and specifications, then such bid may not be accepted unless it is equal to prevailing prices and the work does not permit repeating the invitation of tenders, upon the approval of the competent minister or the head of the independent agency.
- The successful bidder shall submit a final guarantee of 5% five percent of the contract value within ten days from date of awarding the bid , and it
shall not be released until the contractor performs his obligations and, in public work contracts, until the end of the maintenance period and the final handover of the works.
- Employees of government authorities shall keep confidential information submitted in the bids and shall not disclose it to other tenderers or others except as provided for in this Law.
- Government authorities shall announce the results of public tenders and government procurements which they contract for their execution.
- A contractor shall provide a ten-year warranty against partial or full collapse of what he constructs starting from the date of final handover to the Government Authority, if such collapse is due to a construction defect, unless the two contracting parties agree on a shorter period.
- A committee should been form of advisors comprising from MOF and other relevant government authorities. This committee reviewed compensation claims submitted by contractors and suppliers as well as reports of deceit, fraud and manipulation, in addition to decisions of withdrawal of works. It also reviewed claims submitted by government authorities. The committee hear statements of grievant contractors and suppliers and those accused of violations, their defenses and views of the government authority.
The implementing regulations can be found on the Ministry of Finance official website:
SOUTH AFRICA
New initiatives to promote public procurement transparency and integrity
Office of the Chief Procurement Officer has been established. Part of his responsibility would include implementing measures to ensure greater transparency.
SOUTH KOREA
On-line publishing of procurement laws and policies
The Republic of Korea discloses all the information stated above through KONEPS ( a single window of e-procurement, operated by Public Procurement Service.New initiatives to promote public procurement transparency and integrity
“Law for Using and Promoting e-Procurement" enacted
- For the purpose of enhancing efficiency and transparency in e-procurement by managing public procurement more systematically, the law was enacted and promulgated in March 22, 2013.
- The law has articles stating the prohibition of illegal e-procurement activities, penalties against such activities, etc.
Measures to prevent the false price from being set by using e-tax invoice was established.
- For the sake of keeping suppliers from submitting the false price before contracting with MAS (Multiple Award Schedule) and also to manage the data for appropriate prices more effectively, the measures were set to require suppliers to submit e-tax invoice and e-transaction invoice per product effective from January 1, 2013.